It is a reality of life that periods of employment are going to end. There are many reasons why an employee can part ways with their employer, including moving onto another position, contacts expiring, resignation, redundancies and more.
But there are also times when the end of employment is not pleasant, and the employee is fired or sacked for performance-related issues, behavioural issues and/or discipline reasons. Employees and employers both have rights in these scenarios as it is vital to ensure that the termination of employment is legal.
An unlawful or unfair dismissal can be very traumatic for an employee, can lead to financial hardship and can impact their ability to find new employment. That, in turn, can be damaging to the employer who becomes liable for compensation as well as possibly being forced to reinstate the employee.
That is why both parties must be aware of their rights and responsibilities under Australian legislation to ensure that the termination process is conducted fairly and that the correct outcome is achieved.
What constitutes unfair dismissal?
When there is no cause for an employee to be dismissed, or they have been denied under unreasonable or harsh circumstances, then it can be determined to be unfair under Fair Work Australia legislation.
For a dismissal to be considered reasonable, it must be established that:
- There was a valid reason for termination and that the employee had a right to respond before they were dismissed
- That there were previous warnings issued on matters related to performance and unsatisfactory conduct
What are the penalties for unfair dismissal?
The size of the business and ability to handle procedural matters and any other issues that Fair Work Australia considers relevant may also be taken into consideration.
If a business is found to have terminated the employment of a worker unlawfully, compensation may be sought by the employee. That can put a business out of pocket up to $71,000, which is the highest compensation that can be paid out under Australian legislation.
But there are other penalties as well, including damage done to the business brand and reputation while in some cases the employee may successfully argue for reinstatement as well.
The Procedural Fairness process
Before any worker is dismissed, it is vital for them to be notified of what they have done wrong and given a right to respond at a fair hearing. This is called Procedural Fairness, and it is crucial that employers are aware of this.
Workers have the right to respond to the allegations made against them in a fair hearing where the decision-maker makes their verdict based only on the responses and information provided, not on personal history. These decision-makers should be unbiased and separated from the situation.
Employees also have the right to have a support person present during these hearings to provide emotional support and ensure they have provided all evidence during a stressful period.
This ensures that the employee has every opportunity to defend their case and be given a fair hearing to present their evidence if they believe they have been wrongfully dismissed. It also protects the employer from potentially expensive court cases. If the employer has made the correct decision and followed the right processes, the employee will have no claim on compensation, and the termination of employment will be legal.
Precise Investigation can provide experienced people to help you conduct fair hearings and determine the correct course of action during these hearings so that both parties will have a fair opportunity to present their case.
Click here to see more information on how a private investigator can help further with employee surveilance and misconduct.
For extra support or assistance with your case, please do not hesitate to contact us at contactus@precisestigation.com or Tel: 03 9564 7303.
